This story is a part of an in-depth, two article feature on Beloit College’s bias incident policy. The other article, entitled “Faculty member accused of bias criticizes policy’s lack of due process, punitive nature,” can be read here.

An assessment of Beloit College’s Anti-Hate/Bias Incident policy by a national organization devoted to civil liberties on college campuses has concluded that the college’s bias response policy is unethical and potentially illegal.

At the request of The Round Table, the Foundation for Individual Rights in Education (FIRE) conducted an examination of the bias incident policy. (The full assessment can be viewed below.) The organization found that “[a]lthough Beloit is a private college and thus not legally bound by the First Amendment, it makes institutional promises that bind it morally and perhaps even contractually to protect free speech.”

Adam Steinbaugh, who is a Senior Program Officer for FIRE, investigative reporter and attorney specializing in the First Amendment, and Laura Beltz, a FIRE Program Officer and former associate editor of the University of Pennsylvania Law School’s Journal of Constitutional Law, helped conduct the assessment.

Assistant Dean of Students and Director of the Office for Inclusive Living and Learning Cecil Youngblood, who serves as one of two lead responders for the college’s bias incident report system, confirmed that the policy was not reviewed by Beloit College’s policy attorney, Eric Rumbaugh, before it was put into place for a “one-year pilot phase.”

“We do get feedback and assistance in other situations but nothing was sought or received in reference to the policy,” Youngblood said. Dean of Students Christina Klawitter said the college’s legal counsel was consulted “conceptually and broadly” at an early stage in the policy’s development “to ensure the college developed the best possible policy,” but that the attorney’s involvement did not go beyond that.

Associate Dean of the College and Associate Professor of Sociology Charles Westerberg stated that in his 10 years serving as a dean at Beloit College, he is unaware of another policy that has been instituted without the substantial consultation of an attorney. Westerberg said that he knows of several examples of policies at Beloit that were created with the input of legal counsel and was surprised to hear, after returning from sabbatical, that there wasn’t attorney consultation on this policy.

According to Laura Beltz, the college’s Student Handbook repeatedly promises the college is both “protective” and encouraging of the right to free inquiry and expression so long as it “does not disrupt the operations and essential functions of the college, endanger the safety of individuals or destroy property.”

Beltz added, “Students reading these promises would, I think, reasonably expect that Beloit will provide them with free speech rights commensurate with those of their peers at public institutions.”

In spite of this, Beltz said that “the Anti-Hate Acts and Bias Incident Policy can be used to…investigate speech that would be protected under First Amendment standards.”

In other words, FIRE believes that there is a possibility the bias incident policy violates the contract that exists between the Beloit College administration and the students.

FIRE, a nonpartisan nonprofit focused on civil rights on college campuses, recently published a separate report which found that bias incident policies are prone to have a chilling effect on freedom of speech and academic freedom on college campuses and that, as the policy stands, Beloit College’s policy is no different.

Beltz highlighted the “overbroad” definition of a bias incident within Beloit’s policy. She pointed out that threats and intimidation would not be considered protected speech, “but speech that marginalizes others could be protected speech under First Amendment standards.” Furthermore, the policy’s attempt to assert that it will not target speech that possess “a reasonable relationship to an educational, political and/or artistic end,” is prone to misuse.

“It looks like this clause was meant to make sure they’re not including protected speech, but this carve-out is entirely subjective and is unhelpful,” said Beltz. “Speech subjectively determined to be lacking a reasonable relationship to an educational, political, and/or artistic end by one college administrator may still be protected under First Amendment standards.”

Steinbaugh wrote in a separate report on bias response teams that “the posture taken by many bias response teams is all too likely to create profound risks to freedom of expression, freedom of association, and academic freedom on campus.”

Provost and Dean of the College Ann Davies said in a written statement that, after “students made clear that they felt the pressing need for an explicit reporting mechanism,” the policy was written and underwent numerous drafts. According to Davies, the policy began “with the Student Policy Committee, then moving through senior staff, the Faculty Status and Performance Committee, Staff Council, and ultimately, Academic Senate.”

However, “students, staff and faculty input improved the protocol tremendously,” said Davies, ”most importantly, by simultaneously affirming the centrality of academic freedom to our mission and acknowledging that acts of hate and bias threaten to undermine the liberal learning that academic freedom is intended to serve.”

Davies added, “I see academic freedom as central to the realization of Beloit College’s mission.”

FIRE opined that if a school offers a commitment to freedom of speech and academic freedom in their available literature, then they should honor that commitment. “The First Amendment does not apply to a private institution. But when a private institution says we are a place of academic freedom and of free speech, they should be held to that promise,” said Steinbaugh. “They are making a promise to the students about what they are paying for. So if a college says you have free speech at our institution in their advertisements and on their website but then has a whole bunch of policies which allow them to select which speech they will consider to be free speech, that is deceptive.”

Even before beginning its pilot phase in October 2016, the Anti-Hate/Bias Incident policy was a source of controversy, as the school has attempted to quickly meet the demands of students.

The “bias incident” end of the policy, which was intensely debated among the faculty and staff of Beloit after a 2015 demand from Students for an Inclusive Campus for such a policy, led to the establishment of a “hate and bias response” team. The initial demand from Students for an Inclusive Campus was for a “non-consequential reporting system for students…for monitoring incidents and tracking campus climate.”

What the college created, however, was substantially different from what students had demanded. Instead, the college approved a policy that formedthe hate and bias team, which receives reports from campus members regarding perceived “bias incidents” and then investigates these accusations. The Round Table was unable to confirm how the policy was altered from the initial request as it passed through debate.

FIRE noted that the initial student request was consistent with bias incident policies that FIRE believes adequately protect the freedom of speech and academic freedom on campuses. In FIRE’s assessment of Beloit’s policy, the organization highlighted the University of Wisconsin-Madison, which has a bias incident policy devoted exclusively for “reporting and statistical” purposes, as a model for how these policies can be run alongside a commitment to academic freedom on a college campus.

This hate and bias team is currently composed of Youngblood and Associate Professor of Sociology Kate Linnenberg. Each year, a new professor will be selected to serve alongside Youngblood as the second lead responder. Bias incident reports are submitted through the college’s online web form and are then reviewed by the team.

According to the Anti-Hate/Bias Incident policy, a bias incident “is a verbal, written, or physical act of intolerance or prejudice that does not involve violence or other conduct violating college policy, but which threatens, intimidates, or marginalizes individuals or groups because of their actual or perceived race, color, religion, sexual orientation, ability status, ethnicity/national origin, physical characteristics, sex, gender, gender identity, gender expression, and/or any other legally protected classification and lacks a reasonable relationship to an educational, political, and/or artistic end.”

After the hate and bias response team (hereto referred to by the commonly used acronym for Bias Response Team, ‘BRT’) went into action six months ago, Linnenberg and Youngblood say they received 12 reports for nine incidents during the first semester — some incidents, such as the white supremacist poster incident from first semester, yield multiple reports. Six of these reports were for bias incidents, one involved a hate crime and two were considered hate acts. They have received another “five or six” this semester. All of these reports have been filed by students, and while most have been levied against other students, one was filed against a faculty member and one was filed against a staff member. Three reports were filed anonymously.

When filing an online bias incident report, the person filling out the document has the option to list their name or file the report anonymously. From there, a person filling out a report can detail the incident and list an array of information including where the incident occurred (on-campus in classroom, online, off-campus, etc.), what facet of their identity the bias targeted (race, gender, etc.) and who was involved in the incident.

The online reporting form itself is password protected and limited to those with a Beloit College email account, a decision that Linnenberg and Youngblood say was done to emphasize the policy’s aim at improving the campus community and to prevent potential “pranks” or false reports.

“One main issue in looking at Bias Response Teams that I’ve seen is that they are reluctant to be transparent. There is a risk of that [with Beloit] because the reporting form is password protected,” said Steinbaugh. “The outside world, including prospective students, may not be able to look at the form and see what kind of speech might get reported to an administrator through this reporting system.” Steinbaugh did state, however, that the fact that Beloit lists its policy at all online is a positive sign.

Linnenberg emphasized that she and Youngblood are “not a disciplinary body.” Instead, as stated in the school’s policy, the BRT works to provide “educational opportunities” for those that are reported. These so-called “opportunities,” according to Linnenberg and Youngblood, have typically consisted of entirely voluntary conversations between them, the person or persons who filed the report(s) and the person or persons who are accused of bias. So far nobody accused has refused the conversation, but several people who have filed reports have decided to not participate in the optional conversation.

Steinbaugh remarked that the school’s promise of “educational opportunities” seems reasonable, but is subject to misunderstanding and prone to misuse. “If it is completely voluntary” to have a conversation or take a class, Steinbaugh said, then “that is not tremendously objectionable. The problem is that a lot of schools say that they provide educational opportunities to the student who is reported, and what they mean is that they are verbally reprimanding the student for offending people and doing something inconsistent with their values and then calling that reprimand ‘educational.’ They are educated that they offended people.”

Youngblood and Linnenberg say they were trained in “restorative justice” by Associate Director of the Office of International Education Josh Moore, who is a trained conflict mediator specializing in restorative justice, in preparation for their roles as lead responders.

Youngblood and Linnenberg also stated that they examined other institutions with BRTs in order to learn from both the mistakes and positives of other policies, as well as studied a litany of court cases that pertained to free speech on college campuses. “There were considerations around all sorts of concerns before we even engaged in laying down what our policy and protocol was going to be,” said Youngblood.

The American Civil Liberties Union (ACLU) has condemned college policies that prohibit or chill speech on both public and private campuses as “the wrong response, well-meaning or not.”

“The ACLU believes that all campuses should adhere to First Amendment principles because academic freedom is a bedrock of education in a free society,” the organization writes.

Key members of the Beloit College community, such as Youngblood and Davies, stand behind this policy. They believe that, with proper revisions, the bias incident policy can be an effective resource for the campus. Davies said that she believes “some version” of the BRT deserves to continue beyond the pilot phase “with continuing careful attention to its operation and effectiveness and adjustment in response to problems.”

Linnenberg heralded the policy as a new “institutional outlet” for campus members to report problems that previously would have gone unheard, something she said represents “positive change.”

Youngblood said that the policy has helped prove the college’s commitment to a fast and organized response to community incidents, something students have previously accused the administration of slouching on.

“For me, this was a major request and, to the best of our ability at this point, we have responded to what students have asked for. They asked for something that’s really important,” said Youngblood. “We’ve still got some refining to do and some questions to answer, but overall it is accomplishing its purpose thus far. And that’s a good feeling.”

The representatives of FIRE, however, believes that Beloit will be unable to continue its stated commitment to academic freedom and free speech as long as the current version of the bias incident policy remains in place.

Beloit’s Anti-Hate/Bias Incident policy, including the BRT, will be reviewed by the Academic Senate throughout the end of this semester and the beginning of the fall term.